Himachal Pradesh High Court

Reserved On: 24.04.2025 vs State Of Himachal Pradesh on 5 May, 2025

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 19 of 2025 Reserved on: 24.04.2025 Date of Decision: 05.05.2025.

    Uchechukwau Emmanuel                                                         ...Petitioner
                                          Versus

    State of Himachal Pradesh                                                    ...Respondent


    Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioner : Mr. K.S. Gill, Advocate. For the Respondent : Mr. Lokender Kutlehria, Additional Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking regular bail. It has been asserted that the petitioner was

arrested vide FIR No. 28 of 2024, dated 21.2.2024, for the

commission of offences punishable under Sections 21, 22 and 29

of Narcotic Drugs and Psychotropic Substances Act (in short 'the

ND&PS Act'), registered at Police Station Nahan, District

Sirmour, H.P. As per the prosecution, the police searched a

vehicle bearing registration No. HR-12Y-8814 and recovered

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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960 capsules containing Tramadol and other drugs. The police

also recovered 22.92 grams of heroin. The police arrested

Roshan Lal alias Vicky. He revealed that he had purchased the

drugs from Tej Pratap. The police arrested Tej Pratap, who got

the petitioner arrested. The police recovered 32.45 grams of

heroin from the possession of the petitioner. The petitioner has

been in judicial custody since 29.2.2024. He was falsely

implicated. There is nothing to connect him with the

commission of crime except the statement made by the co-

accused. The prosecution has not completed the evidence, and

the right to a speedy trial of the petitioner is being violated.

Hence, the petition.

2. The petition is opposed by filing a status report

asserting that the police party was on patrolling duty on

20.2.2024. They received a secret information at 6.20 PM that

Roshan Lal alias Vickey was selling heroin, and he would be

transporting the heroin in a vehicle bearing registration

No. HR-12Y-8814. The police reduced the information to writing

and sent it to the Supervisory Officer. The police associated two

independent witnesses and intercepted the vehicle. The police

recovered 22.82 grams of heroin and 960 capsules containing

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Tramadol from the vehicle. The driver of the vehicle identified

himself as Roshan Lal. The police arrested him and seized the

drugs. Roshan Lal revealed during the interrogation that he had

purchased the drugs from Tej Pratap Bhatia. He had also

transferred money to the account of Tej Pratap Bhatia. Police

arrested Tej Pratap Bhatia, who revealed on inquiry that he had

purchased heroin from a Nigerian National who could be got

arrested by him. He led the police to the petitioner. The police

arrested the petitioner and recovered 32.45 grams of heroin

from him. As per the report of analysis, the capsules contained

Tramadol, and the sample of heroin contained Diacetyl

morphine. The prosecution cited 44 witnesses out of whom five

have been examined. The matter was listed on 11.3.2025 for

recording the statements of prosecution witnesses. The

petitioner is the supplier of heroin, and he was also found in

possession of 32.45 grams of heroin. He would abscond in case

of release on bail. Therefore, it was prayed that the present

petition be dismissed.

3. I have heard Mr. K.S. Gill, learned counsel for the

petitioner and Mr. Lokender Kutlehria, learned Additional

Advocate General, for the respondent-State.

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4. Mr. K.S. Gill, learned counsel for the petitioner,

submitted that the petitioner is innocent and he was falsely

implicated. As per the prosecution, the police recovered 32.45

grams of heroin from the petitioner, which is an intermediate

quantity, and the rigours of Section 37 of the ND&PS Act do not

apply to the present case. There is a delay in the progress of the

trial; hence, he prayed that the present petition be allowed and

the petitioner be released on bail.

5. Mr. Lokender Kutlehria, learned Additional Advocate

General, for the respondent-State, submitted that the petitioner

is a supplier of heroin, which is affecting the younger generation

adversely. The petitioner is a resident of a different country, and

he would abscond in case of release on bail. Therefore, he prayed

that the present petition be dismissed.

6. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

7. The parameters for granting bail were considered by

the Hon'ble Supreme Court in Ramratan v. State of M.P., 2024 SCC

OnLine SC 3068, wherein it was observed as follows: -

"12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any

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conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:

"14. The language of Section 437(3) CrPC which uses the expression "any condition ... otherwise in the interest of justice", has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail." (Emphasis supplied)

13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, this Court discussed the scope of the discretion of the Court to impose "any condition" on the grant of bail and observed in the following terms: --

"15. The words "any condition" used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, effective in the pragmatic sense, and

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should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed." (Emphasis supplied)

14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into consideration while deciding the application for bail and observed:

"4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial."

(Emphasis supplied)

8. The present petition has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

9. The status report shows that the petitioner was

identified by Tej Pratap. The police arrested the petitioner and

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recovered 32.45 grams of heroin from the petitioner. It was laid

down by the Hon'ble Supreme Court in Mehboob Ali v. State of

Rajasthan, (2016) 14 SCC 640: (2016) 4 SCC (Cri) 412: 2015 SCC

OnLine SC 1043, that when the accused furnished the

information leading to the discovery of the accused from whom

forged currency notes were recovered, such a discovery is

admissible under Section 27 of the ND&PS Act. It was observed

at page 646: -

"15. It is apparent that on the basis of the information furnished by accused Mehboob Ali and Firoz, and other accused, Anju Ali was arrested. The fact that Anju Ali was dealing with forged currency notes was not to the knowledge of the police. The statements of both the accused have led to the discovery of the fact and arrest of the co-accused, not known to the police. They identified him, and ultimately, statements have led to unearthing the racket of the use of fake currency notes. Thus, the information furnished by the aforesaid accused persons vide information memos is clearly admissible, which has led to the identification and arrest of accused Anju Ali, and as already stated, from possession of Anju Ali's fake currency notes had been recovered. As per information furnished by the accused Mehboob and Firoz vide memos Exts. P-41 and P-42, the fact has been discovered by police as to the involvement of the accused Anju Ali, which was not to the knowledge of the police. The police was not aware of the accused Anju Ali, as well as the fact that he was dealing with fake currency notes, which were recovered from him. Thus, the statement of the aforesaid accused Mehboob and Firoz is clearly saved by Section 27 of the Evidence Act. The embargo put by Section 27 of the

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Evidence Act was clearly lifted in the instant case. The statement of the accused persons has led to the discovery of fact proving complicity of the other accused persons, and the entire chain of circumstances clearly makes out that the accused acted in conspiracy as found by the trial court as well as the High Court.

xxxxxxx

20. Considering the aforesaid dictums, it is apparent that there was a discovery of a fact as per the statement of Mehmood Ali and Mohd. Firoz. Co-accused was nabbed on the basis of identification made by the accused Mehboob and Firoz. That he was dealing with fake currency notes came to the knowledge of the police through them. Recovery of forged currency notes was also made from Anju Ali. Thus, the aforesaid accused had the knowledge about co-accused Anju Ali, who was nabbed at their instance and on the basis of their identification. These facts were not to the knowledge of the police hence the statements of the accused persons leading to discovery of fact are clearly admissible as per the provisions contained in Section 27 of the Evidence Act which carves out an exception to the general provisions about inadmissibility of confession made under police custody contained in Sections 25 and 26 of the Evidence Act."

10. In the present case, the statement made by Tej

Pratap, leading to the discovery of the petitioner, would be

admissible under Section 27 of the Indian Evidence Act, and

there is sufficient material to connect the petitioner with the

commission of a crime.

11. It was submitted that the petitioner was found in

possession of an intermediate quantity of heroin, and he is

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entitled to bail as a matter of right. This submission is not

acceptable. This Court laid down in Dilbar Khan v. State of H.P.,

2022 SCC OnLine HP 2441, that a person found in possession of

an intermediate quantity of drugs is not entitled to bail as a

matter of right. It was observed: -

"9. No doubt the quantity of contraband in the case is intermediate and therefore the rigours of Section 37 of the NDPS Act will not be applicable. Merely because the quantity of contraband recovered is less than the commercial quantity may not, by itself, be sufficient to grant bail.

10. The menace of drug abuse is not unknown in society in modern times. The victims are innocent adolescents, among others. Drug abuse more often than not leads to drug addiction, which ruins the lives of a substantial number of such persons. The question arises as to how young adolescents, who by and large remain in the custody of their guardians, are able to procure the prohibited drug. Definitely, the drug is made available through a supply chain managed in an organised manner."

12. It was laid down by this Court in Khushi Ram Gupta v.

State of H.P., 2022 SCC OnLine HP 3779, that the menace of drug

addiction has seriously eroded into the fabric of society, and the

release of an accused on bail in NDPS Act cases will send a

negative signal to society. It was observed:

"8. The menace of drug addiction, especially in adolescents and students, has seriously eroded into the

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fabric of society, putting the future generation as well as the prospects of future nation-building into serious peril.

9. It is not a case where the investigating agency is clueless in respect of evidence against the petitioner. Though allegations against the petitioner are yet to be proved in accordance with law, it cannot be taken singly as a factor to grant bail to the petitioner. Nothing has been placed on record on behalf of the petitioner to divulge as to how and in what manner he came in contact with the persons who were residents of the State of Himachal Pradesh. Thus, there is sufficient prima facie material to infer the implication of the petitioner in the crime. In such circumstances, the release of the petitioner on bail will send a negative signal in society, which will definitely be detrimental to its interests.

10. The prima facie involvement of the petitioner in the dangerous trade of contraband cannot be ignored merely on account of the fact that he has no past criminal history. It cannot be guaranteed that there will be re-indulgence by the petitioner in similar activities, in case he is released on bail."

13. Similarly, it was held in Bunty Yadav v. State of H.P.,

2022 SCC OnLine HP 4996 that even where the rigours of Section

37 of the NDPS Act are not applicable, the bail cannot be claimed

as a matter of right. Each case has to be adjudged on its own

facts. It was observed:

"6. The quantity involved in the case is 89.89 grams of heroin and 3.90 grams of MDMA. Such quantity may not technically fall under the category of commercial quantity, nevertheless, such quantity cannot be termed to be less by any stretch of the imagination. The evident nature of commercial transactions and dealing with the contraband aggravates the situation for the petitioner. In

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a case where Section 37 of the NDPS Act is not applicable, the bail cannot be claimed as a matter of right. The fate depends on the facts of each and every case.

7. The menace of drug addiction, especially in adolescents and students, has seriously eroded into the fabric of society, putting the future generation as well as the prospects of future nation-building into serious peril."

14. The Karnataka High Court took a similar view in Sri.

Thaha Ummer vs Union of India Criminal Petition No.9450/2022

decided on 09-11-2022 and held that merely because Section 37

of the NDPS Act does not apply, a person involved in the

commission of an offence punishable under the NDPS Act cannot

be released on bail as a matter of right.

15. In the present case, the petitioner was stated to be a

drug peddler by Tej Pratap, and there is force in the submission

of Mr. Lokender Kutlehria, learned Additional Advocate General,

for the respondent-State that the heroin is adversely affecting

the younger generation and cannot be viewed lightly. Hence, the

petitioner cannot be released on this consideration.